The Revised EMTALA Rule: What Looms on the Horizon?

1. The Revised EMTALA Rule: What Looms on the Horizon?

2. Presenters Taya Briley, Director, Legal Affairs and Clinical Policy, WSHA Dick Goldsmith, Director, Legal Services and Health Policy, AWPHD Barbara Shickich, Principal, Riddell Williams, P.S.

3. Purpose of the Web Cast • Provide a brief background on EMTALA • Describe the major changes in the revised rule • Offer some perspective on the rule • Most importantly: hear what the rule means (or might mean) to your facility

4. EMTALA Background • Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA) • Civil monetary penalties/revocation of Medicare participation for hospitals and physicians who, in an emergency care context fail to comply with EMTALA requirements

5. EMTALA Obligations • Medical screening examination • Stabilizing care • Appropriate transfer • Maintain on-call system • Maintain central log of individuals who come to emergency department

6. Revised EMTALA Rule • Proposed changes May 9th 2002 • Final rule published September 9th 2003 • Final rule effective November 10th 2003

7. Centers for Medicare and Medicaid Services Goals for Revision • Recognize real world situations • Clarify requirements • Resolve conflicting court opinions • Follow common sense • NOT to weaken patient protections

8. The Final Rule • Where EMTALA applies • Exceptions to when EMTALA applies • Medicare Conditions of Participation • Registration process • Ambulances • National emergencies • On-call roster

9. Where EMTALA Applies • EMTALA obligations start when a person “comes to the emergency department” • Definition differs depending on where the person presents on hospital property

10. Where EMTALA Applies: Dedicated Emergency Department • EMTALA applies to an individual presenting at a “dedicated emergency department” and • requests examination or treatment for a medical condition or • has such a request made • also applies where a “prudent layperson” would say the person needs examination or treatment

11. Dedicated Emergency Department (DED) • “DED” is defined to be: On or off main hospital campus and • licensed by the state as an emergency department or • held out to the public as an emergency department or place providing urgent care without an appointment or • 1/3 of outpatient visits during previous year were for emergency medical conditions or urgent care needs without an appointment (implications for labor and delivery and psychiatric departments)

12. Where EMTALA Applies:On Campus • On campus EMTALA does not apply to departments other than DEDs unless emergency services are requested • Prudent layperson standard applies • Hospital property does not include the following facilities that participate in Medicare separately from the hospital: • physician offices • rural health clinics • skilled nursing facilities • Does not apply to other non-medical services

13. Where EMTALA Applies:Off Campus • Off campus, determine if the definition of “dedicated emergency department” is met • If EMTALA does not apply, the hospital must have policies and procedures in place to handle emergencies

14. Exceptions to When EMTALA Applies • Inpatients • EMTALA does not apply to a patient who is admitted as an inpatient • Outpatients • Once a patient has begun a scheduled outpatient procedure EMTALA does not apply

15. Medicare Conditions of Participation • Although EMTALA may not apply Medicare Conditions of Participation govern many cases instead • Particularly true for inpatient and outpatient circumstances • Failure to comply with Conditions of Participation may result in ineligibility to participate in Medicare • State laws still apply

16. Registration Process • The normal ED patient registration process may be followed as long as patient care is not delayed • Hospital may not seek prior authorization for screening or stabilization services until after medical screening and initiating any other treatment necessary to stabilize condition • Consultation with another physician is allowed

17. Air or Ground Ambulances • EMTALA does not apply to a hospital owned ambulance if • it is operated under community EMS protocols that direct a patient to another hospital or • if the ambulance is operated at the direction of a physician who is not employed/ affiliated with the hospital that owns the ambulance

18. National Emergencies • Hospitals in a national emergency area will not be cited for transfers that would otherwise violate EMTALA • Does not address local emergencies

19. On-Call Roster • CMS says not a change in prior policy • Hospitals must maintain an on-call list in a manner that best meets needs of the hospital’s patients receiving required EMTALA services • Must be in accordance with resources that are available to the hospital, including the availability of on-call physicians

20. Determining Adequate On-Call Coverage • CMS will consider the following factors: • number of physicians on staff • other demands on the physicians • frequency with which hospital’s patients typically require services of on-call physicians • provisions the hospital has made for situations where a physician in a particular specialty is not available or on-call physician is unable to attend

21. “Gaps” In On-Call Services • Hospital must have a policy in place to respond where a specialty physician is not available or cannot respond due to circumstances beyond his/her control • “Dual on-call”: policy must be in place for emergency services to meet patient needs if physicians are permitted: • to schedule elective surgery when on-call OR • to be on-call at multiple hospitals

22. Responding to Call • Physician can have mid-level practitioner respond to call if it is appropriate • Emergency department physician must agree • Defer to judgement of emergency department physician if there is a disagreement about whether a particular situation requires expertise of on-call specialist

23. Select Call • Physician may come to hospital to see own patients on rounds or in response to request without being considered on-call • BUT: EMTALA violation if physician responds to call for patients with whom he/she has a doctor-patient relationship while declining call from other patients, including those without ability to pay

24. The Critique: General Comments on the Rule • American Hospital Association • American College of Emergency Physicians • Consumer Groups • EMTALA Legal Experts

25. Perspective on the Rule • Good news for hospitals • Clarifies CMS interpretations • Narrows the scope of EMTALA obligations

26. Some Bad News • Introduces dedicated emergency department concept • Creates ambiguity for on-call requirements • Defers guidance on psychiatric patients and Medicare+Choice plans • Presents potential problem with “prudent layperson standard”

27. Flexibility Creates Uncertainty • On-call requirements • Ambiguity may weaken hospital ability to provide on-call services • Registration process • Balance need for obtaining financial information against risk of perception that care was delayed

28. Flexibility Creates Uncertainty Continued • Role of non-physician providers • Who is appropriate provider to conduct medical screening? • Balance more efficient use of staff against risk of not identifying emergency condition

29. Compliance Challenges • Satisfying on-call requirements • Physician/hospital relationships at stake? • Identifying dedicated emergency departments • Areas not previously considered to be DEDs

30. More Compliance Challenges • Monitoring admission of patients • Assure admissions are made in good faith • Assuring Medicare Conditions of Participation are consistently met • Consider how Conditions of Participation apply in emergency context

31. EMTALA and the Medicare Bill • House bill includes provisions requiring: • Medicare to pay for emergency services • Notification of when EMTALA investigations are closed • Peer review in EMTALA cases that involve termination from Medicare program • The Secretary must establish an advisory committee to look at implementation of EMTALA

32. EMTALA Resources • American Hospital Association • www.hospitalconnect.com • Health Law Resource Center • www.medlaw.com • Centers for Medicare and Medicaid Services • www.cms.hhs.gov • American Health Lawyers Association • www.healthlawyers.org

33. EMTALA Resources • CMS Open Door Forum on EMTALA • Thursday, October 2, 2003 • 2:00 PM Eastern / 11:00 AM Pacific • Call 1-800-837-1935 (TTY dial 711) • ID = 2787065 • Recorded archive available October 6-9 by calling 1-800-642-1687

34. Questions?

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